Sexual harassment: How must employers in Europe respond?
More than half the women surveyed by the TUC earlier this year said that they had been sexually harassed at work, with most admitting they had not reported it. But British women are not the only ones to be subjected to unwanted sexual advances, inappropriate jokes and comments, or groping in the workplace. In Australia, for example, research suggests that the rate of sexual harassment has increased by over 12 per cent since 2011, while figures from the United Nations have shown that between 40 and 50 per cent of women in EU countries have been affected.
But although sexual harassment in the workplace affects employees around the world, legal approaches to dealing with it vary from country to country, which can be a challenge for employers with employees in more than one jurisdiction. It is important that these international employers are aware of the laws surrounding sexual harassment and abuse in the workplace in each country where they have employees.
In the UK, the Equality Act 2010 prohibits sexual harassment, defined as conduct of a sexual nature which has the purpose or effect of violating the victim’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment. Examples might include unwelcome sexual advances, displaying pornographic images, or sending emails containing material of a sexual nature.
Employers in the UK are responsible for their employees’ actions in the course of their employment, even if such actions are taken without the employer’s knowledge or approval. However, if the employer can demonstrate that it took all reasonable steps to prevent the employee from taking the discriminatory action, it will have a successful defence.
Italian law takes a slightly tougher approach. It not only bars unwanted conduct of a sexual nature “expressed in any way” which violates, or is intended to violate the dignity of an employee or which creates an intimidating, hostile, degrading, humiliating or offensive working environment, it also provides that any agreements, or management decisions, concerning the employment contract of an employee who is a victim of sexual harassment are null and void (in other words, ineffective) if they are adopted because of the employee’s refusal of, or subjection to, the sexual harassment.
In addition, Italian law places a duty on employers to prevent and punish sexual harassment occurring in the workplace. Employers must adopt all necessary measures to guarantee a safe working environment for all employees and are also required to take swift remedial action against an employee that is found to have committed sexual harassment, including dismissal of that employee.
Similarly, the German equal treatment legislation requires employers to take necessary measures to protect employees against sexual harassment. When a harassment allegation has been substantiated, employers need to provide a written warning to the harasser, relocate him or her, or – in the case of an employee who has already been found to have harassed in the past or who commits severe sexual harassment – dismiss that individual.
Sexual harassment is clearly a pressing issue for employers, both in the UK and across the globe. Employers who fail to protect their employees from this form of harassment face potentially costly litigation and, at times, astronomical court awards. Both legal teams and HR professionals will sleep better at night if they ensure that their organisations takes all necessary steps to avoid sexual harassment claims.
- Having clear anti-harassment policies
- Making all employees aware of these policies and providing training on them
- Dealing effectively with any complaints of harassment
- Taking disciplinary action against the perpetrator as appropriate.
International employers should, in addition, be mindful of the different laws surrounding sexual harassment at work in each of the countries in which they operate. This will enable them both to formulate appropriate policies and respond correctly to any harassment claims that arise.
First published on globalhrlaw.com.